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NLRB delays new NLRB labor poster until April 12, 2012

As noted in my earlier post, the National Labor Relations Board set January 31, 2012 as the deadline for the new posting requirements. The recently postponed the effective date of the employee rights notice-posting rule until April 30, 2012  by its press release available here. Thanks to the attorneys are Meyers Roman getting the word out in their client alert.

Where can I find a copy of the proposed notice? A copy of the proposed notice is available here.

What are the consequences for not posting the notice? There are a variety of consequences including (a) the extension of the 6 month statute of limitations for a charge of unfair labor practices and (b) the failure may be considered evidence of unlawful motive in an unfair labor case.

Where can businesses find additional information? The NLRB has a FAQ site that answer common questions and has links the laws.

Posted in Business, Employment, Start-Ups.

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By Ryan Rivchun – January 23, 2012

2012 – New Ohio Minimum Wage and New Ohio Minimum Wage Poster

With the start of the new year, the new Ohio minimum wage is in effect at $7.70 per hour for most employees. The Ohio Department of Commerce has also published is new 2012 Minimum Wage poster available here.

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By Ryan Rivchun – January 2, 2012

SEC announces new net worth standard for accredited investors – Release No. 33-9287

The United States Securities and Exchange Commission (SEC)  issued a press release and Final Rule Release No. 33-9287 on December 21, 2011. The purpose of this release is to adopt amendments to the definition of an “accredited investor” under Regulation D promulgated under the Securities Act of 1933. The SEC notes these changes were made to conform the SEC’s definition to the requirements of the 2010 Dodd-Frank Act. The impact of this modification will be to exclude a portion of the investors that previously qualified as an accredited investor by using the value of their primary residence. Hopefully this will not have a negative impact on capital raising for small businesses.

What is the impact of the SEC’s new rule if an investor seeks to qualify as an accredited investor solely based upon net worth?

If an investor seeks to qualify as an accredited investor solely on net worth, the new formula for determining net worth requires that:

  • the primary residence is not included as an asset
  • debt secured by the primary residence is not generally included as a liability
  • any increased debt secured by refinancing debt secured the primary residence within 60 days before the accredited investor determination will be counted as a liability reducing net worth
  • any debt secured by the primary residence that exceeds the fair market value of the primary residence will be counted as a liability reducing net worth
  • debt secured in connection with the acquisition of the primary residence will not be counted as a liability

When does the new rule go into effect?

The new rule will take effect 60 days after publication in the federal register which is viewable here and will occur on Friday, December 29, 2011.

How was the personal residence treated for calculation of net worth before Release No. 33-9287?

Before Release No. 33-9287, the value of an investors primary residence would be included in the net worth calculation with certain qualifications.

Are there any transition rules if an investor already invested an entity?

The new rule provides that the former accredited investor test will apply if (i) the rights were held on July 20, 2010, (ii) the person qualified as an accredited investor at the time the rights were acquired, or (iii) the person held securities of the issuer, excluding new rights, on July 20, 2010. The general impact of the transition rule will be to permit investors to exercise rights they were entitled to old definition.

It is important to review the facts and circumstances of an an investor’s status under the old rule and the new release for all future offerings and the exercise of any rights of investors.

Image used under the creative commons license from Images_of_money.

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By Ryan Rivchun – December 29, 2011

EPA issues draft report on gas well fracking at a Wyoming site

On December 8, 2011, the United States Environmental Protection Agency (EPA) issued a press release setting forth its draft findings from the Pavillion, Wyoming ground water investigation. A copy of the 121 page report is available here and various news agencies have written articles about this. We will see how this impacts gas drilling using fracking throughout the rest of the country.

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By Ryan Rivchun – December 12, 2011

What to look for if you receive notice that a cognovit confession of judgment was taken against you

 

I have recently witnessed lenders taking a confession of judgment on a promissory note which did not contain the statutory warning require by Ohio Revised Code 2323.13(D) which states:

“(D) A warrant of attorney to confess judgment contained in any promissory note…is invalid and the courts are without authority to render a judgment based upon such a warrant unless there appears on the instrument evidencing the indebtedness, directly above or below the space or spaces provided for the signature of the makers… in such type size or distinctive marking that it appears more clearly and conspicuously than anything else on the document:

“Warning — By signing this paper you give up your right to notice and court trial. If you do not pay on time a court judgment may be taken against you without your prior knowledge and the powers of a court can be used to collect from you regardless of any claims you may have against the creditor whether for returned goods, faulty goods, failure on his part to comply with the agreement, or any other cause.” [Emphasis Added]

The first thing any maker or borrower under a promissory note should due upon receiving notice that a judgment has been taken is to review the actual promissory note. There may be a defect in the language of a promissory that enables a maker or borrower to argue for a motion for relief from judgment under Civ. Rule 60(B).

The most common defects involve the failure to include the statutory warning in Ohio Revised Code 2323.13(D):

  • in the exact and verbatim manner set forth in Ohio Revised Code 2323.13(D)
  • “more clearly and conspicuously than anything else on the document”
  • directly above or below the signature of each maker (such as splitting the warning on 2 pages)

My next post will disclose some of the applicable case law on this point.

Posted in Business, Real Estate.

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By Ryan Rivchun – December 4, 2011

Time to implement black friday crowd management plans for retailers expecting large crowds

I recently remembered a tragedy that happened in 2008 at a national retailer when the rush of Black Friday shoppers trampled a worker to death. It is important for retailers and landlord to make sure they have crowd management plans in place if they are expecting large crowds or having blockbuster sales..

The US Occupational Safety & Health Administration (OSHA) issued a news release last week encouraging retailers to take precautions to prevent worker injuries.  You can review the radio station transcript or statements here. OSHA also publishes a fact sheet outlining crowd management safety guidelines which, although expressly stating it does not impose any new compliance requirements, outlines good practices for retailers. OSHA’s guidelines breaks its guidelines into 4 main elements:

  • Planning
  • Pre-Event Setup
  • During the Sales Event
  • Emergency Situation

Many of OSHA’s guidelines are common sense and a few that jump out at me are:

  • hiring trained security or crowd management personnel and have a crowd management plan in place
  • set up barricades away from the front entrance with sufficient breaks and turns to avoid pushing
  • make sure crowd management has communications devices to reach store employees and emergency responders
  • using wristbands, tickets or lottery system in the lines
  • allowing customers into the store in small batches and limiting the number of customers  in the store at one time
  • communicate with the customers and advise them of the retailer’s entrance process and policies
  • make sure security and crowd management personnel are located at the sides of the entering and exiting public and not directly in their path of travel
  • provide a safe entrance for people with disabilities.

I recently purchase the new IPhone 4s form the Apple store in Legacy Village in Cleveland, Ohio the day it was released around 10:30 AM. There was a small line at the time. After reading OSHA’s guidelines and reflecting on that purchase, Apple appears to have designed their crowd management policy for the release of the new IPhone taking into account OSHA’s guidelines. Apple set up a barricaded area slightly away from the store entrance, had turns, had exterior security, issued tickets and limited customers in the store at one time. I expect they also implemented many of the behind the scenes items outlined in OSHA’s guidelines.

Hopefully retailers will review the guidelines and implement safe crowd management policies this holiday season.  Landlord may also want to request and review retailer’s crowd management plan before they authorize a retailer to set up exterior barricades for Black Friday.

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By Ryan Rivchun – November 23, 2011

Thinking of a new internet sweepstakes cafe in Chagrin Falls? Think again.

Chagrin Falls began the process with Ordinance 2011-67 to ban future internet sweepstakes cafes. According to Cleveland.com, the new ordinance prohibits “any computer, individual computer terminal screen, or other interactive machine or mechanical or electrical device which, upon payment of exchange of anything of value, permits a person or operator of such machine to play a game or try the skill of an operator or person using such machine.” A payment is defined as depositing a coin or token, entering an access number or code, or swiping a magnetic card.”

 

On a related note, the City of Cleveland also recently voted to extend its moratorium on internet sweepstakes cafes as published in the city record. It likes operators looking to open these cafes are going to have to find municipalities that have been proactively banning the activity.

 

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By Ryan Rivchun – November 21, 2011

About to update your workplace posters? NLRB delays new notice-posting rule until 1/31/2012

The National Labor Relations Board (NLRB) created a new Employee Rights Notice Posting that is to be posted in a conspicuous place where other notices relating to workplace rights, employer rules and employer policies are posted. A copy of the 11 by 17 notices is available here. A copy of the federal register posting requirement is available here and the NLRB created a FAQ to address employer questions.

On October 5, 2011, the NLRB postponed the implementation of the new posting until January 31, 2012 to “allow for enhanced education and outreach to employer, particularly those who operate small and medium sized businesses.”. A copy of the NLRB press release is available here. The previous effective date as November 14, 2011.

This will allow employers additional time to figure out how they will advise all their non-union employees that they have the right to form a union.

Posted in Business, Employment, Start-Ups.

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By Ryan Rivchun – October 18, 2011

American Invests Act – On its way to the President for signature

The United States Senate passed a bill (H.R. 1249)  yesterday (89-9) that made sweeping reforms to the patent system in America. One of the main change is the conversion of the US patent system from a “first to invent” to a “first inventor to file” patent system. This puts the US in line with other countries around the world.

You can review a summary of the legislation from the Patent Docs blog available here.

Posted in Business, Tech.

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By Ryan Rivchun – September 9, 2011

HB 153 – Ohio will no longer require the Form U-2 consent to service of process for Rule 506 Offerings

The Ohio Legislature recently passed HB 153 which modified Section 1707.11 of the Ohio Revised Code and having an effective date of September 28, 2011. A copy modified Section 1707.11 is available here. Prior to the effective date of the amendment, entities raising capital were required to file the Form U-2 (available here) with the Division of Securities for Rule 506 offerings. This change is a good step by the Ohio legislature to encourage businesses to raise capital.

How is this change implemented?

The amendment to 1707.11 of the Ohio Revised Code removed the requirement to file a consent to service of process under Ohio’s Rule 506 exemption transaction requirements (Ohio Revised Code 1707.03(X)). HB 153 also grants the Division of Securities the right to waive any fees in connection with these transactions. The Division of Securities has told the State Regulation of Securities Committee of the American Bar Association that the Division will no longer require issuers to file the Form U-2 even before the effective date. It would be a good idea for issuers to confirm this with the Division of Securities when they make their Form D filing.

What does this mean for issuers?

Issuers will have one less form to file in the State of Ohio and not will only be required to the federal Form D with the Division of Securities. I expect that the Division is going to update their current Rule 506 guidance (available here) to reflect this change shortly.

Thank you to the ABA State Regulation of Securities Committee for getting this information out to the public.

Posted in Real Estate.

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By Ryan Rivchun – July 20, 2011